Volume 201 — Missouri Reports

Prohibition. (1) The St. Louis Court of Appeals has no appellate jurisdiction over the certiorari case, nor has- it any original jurisdiction by prohibition- to interfere with the circuit court in the trial and determination of the certiorari case. State ex rel. v. Bombauer, 101 Mo. 499; State ex rel.

<p>1. ATTACHMENT: Dissolution: Judgment on Merits: Unmatured Demands. Upon a dissolution of the attachment, the suit is not to be dismissed simply because the demands were not due at the time the suit was instituted. On the contrary, the meaning of the amendment to the statutes enacted in 1891 is that, in suits instituted by attachment, upon a determination of the issue upon the plea in abatement in favor of either defendant or plaintiff, either before or after appeal, the suit shall proceed to judgment on the merits, if the demands have then become due, but “no judgment can be rendered against the defendant upon the merits of the cause of action until it becomes due.” (Disapproving Grier v. Fox, 4 Mo. App. 522, and Aultman ■ & Co. v. Daggs, 50 Mo. App. 280.)</p> <p>2. -: -: -: -: Jurisdiction. Where the suit was instituted by attachment upon unmatured demands and the plea in abatement therein sustained, in determining whether or not the suit on the merits should be discontinued, the question of jurisdiction is not to be determined by a determination of the question of whether or not thereafter the petition states a cause of action — in that, it declares on demands not due. Jn such case the question of jurisdiction is not in the case. Jurisdiction does not depend on the failure of the petition to state a cause of action. Jurisdiction relates to authority over the subject-matter and over the parties. And if the petition states a case belonging to a general class over which the authority of the court extends, there is jurisdiction over the subject-matter, whether or not it states a cause of action. (Disapproving Aultman & Co. v. Daggs, 50 Mo. App. 280.)</p> <p>3. CONSIDERATION: Pleading: Instructions: Proof. Where the answer pleads an entire failure of consideration for the notes and accounts sued on, defendant is entitled to show a partial failure of consideration, and if the proof shows a partial failure the instructions should not require a verdict for plaintiff unless the proof shows a total failure. But whether or not such an instruction should be given depends on the proof. Where there are several counts in plaintiff’s demands, defendant should offer proof directly tending to show which one of them was tainted with a partial failure of consideration, so that the jury may be warranted in decreasing that demand, and unless that is done it is not error for the instructions to require a verdict for plaintiff unless there was a total failure of consideration.</p> <p>4. -: -: -: -: Counterclaim. Where defendant by his answer and instructions presented the issue of a total failure of consideration, and based his counterclaim for damages and expenses incurred by him in removing the purchased pipes from the machines into which they had been placed, on the fact that they were totally unfit for the purposes intended and were not of the strength and character bargained for, he is not in a position to complain that the court confined the issue to a total failure of consideration.</p>

<p>Appeal from Jackson Circuit Court. — lion. W. B. Teasdale, Judge.</p> <p>(1) Sureties cannot appeal in their own name and capacity as such from order of final settlement. Zinc Co. v. Hesselmeyer, 50- Mo. 180; Wilhite y. Ferry, 66 Mo. App. 460; Tuxbery’s Appeal, 67 Me. 267; Wood-bury y. Hammond, 54 Me. 332; Deering v. Adams, 34 Me. 44; Treadwell v. Burton, 8 Ala. 660'; Richardson v. Chevalley, 26 La. Ann. 551; In re McDermott’s Estate, 127 Cal. 4501; Lumber Co. v. Mimms, 49 La. Ann. 1294; Bank y. Barth, 74 111. App. 383; In re Scott’s Account, 36 Vt. 302. It clearly appears from the statute concerning guardianship, which requires a scire facias and judgment before an execution can issue against them, that the sureties are not a party to the judgment of final settlement and one not a party cannot appeal. Johnston v. Williams, 28 Ark. 478; Miller v. Bates, 56 Cal. 135; Beasley v. Prentice, 13 Sm. & M. 97. (a) Appellants must be parties to the judgment. Meyer v. Hotel Co., 163 Mo. 66; Payne v. Niles, 20 How. 219; Aiken v. Smith, 54 Fed. 894; Ex parte.Cutting, 94 U. S. 14; Elwell v. Fosdick, 134 U. S. 513; Guyon v. Ins. Co., 109 U. S. 173; Hesing v. Att’y-Gen., 104 U. S. 202; Rourke v. Goldstein, 86 111. App. 568; Sheldon v. Hinton, 9 111. App. 216; Heges y. Mace, 72 111. 472; Jager v. Dougherty, 61 Ind. 142; Coons v. Millett, 121 Ind.'585; Hodley v. Hill, 73 Ind. 142; Hammer v. Sexton, 69 Ind. 36; Scotland v. Co., 56 Cal. 625; McGinnis v. Wheeler, 36 Wis. 651; Haeldey v. Hope, 4 Keys 123. (b) Sureties are regarded as strangers to the judgment. State ex rel. v. Kennedy, 163 Mo. 516; Meyer v. Hotel Co., 163 Mo. 66; Cement Co. v. Neumeister, 15 Mo. App. 592; McCormack v. Hubbel, 4 •Mont. 87; Way v. Lewis, 115 Mass. 226; Cutler v. E.vans, 115 Mass. 27; Krawl v. Libbey, 53 Wis. 292. (c) Sureties being strangers to the record cannot take an appeal merely because the judgment may affect their interest adversely. State ex rel. v. Talty, 139 Mo. 391; Guy v. Orcott, 169 Mo. 407; Hoover v. Railroad, 115 Mo. 81; McEntyre v. Sholty, 139 111. 178; Coleman v. Oil Co., 25 W. Ya. 148. (d) The sureties are classed as to their covenants with such sureties as covenant that the principal shall do a particular act. State ex rel. v. Surety Co., 76 Mo. App. 240; State ex rel. v. Donegan, 12 Mo. App. 200; Irwin v. Backus, 25 Cal. 214; Nevitt v. Woodburn, 160 111. 203; Rice v. Wilson, 69 N. W. 336. (e) The sureties are estopped by the covenants of their bond from appealing. Woodbury v. Hammond, 54 Me. 332; Tuxbury’s Appeal, 67 Me. 267; Schofield v. Churchill, 72 N. Y. 570; Krawl v. Libbey, 53 Wis. 293; McCormick v. Hubbell, 4 Mont. 87; Rice v. Wilson, 69 N. W. 336; 1 Lord Raymond 328; 3 Com. Dig., 637; Byrd & C. v. State to use, 44 Md. 504. (f) The sureties are not parties to the record and they are bound by judgments, not because they are parties to the record, but by the force of their agreements. Taylor v. Hunt, 34 Mo. 205; State v. Holt, 27 Mo. 340; State v. Denney, 36 Mo. 288; Dix v. Norris, 66 Mo. 514; Yoemans v. Hoshaw, 86 Mo. 199; Assn. v. Kleinhoffer, 40 Mo. App. 402. (g) The appellant must have some legal interest in the estate which will be enlarged or diminished by the appeal. Orthwein v. Brown, 66 Mo. App. 320; McFarland v. Pierce, 151 Ind. 548; Woodward v. Speer, 10 Yt. 420; Heminway v. Corey, 16 Vt. 225; Adams v. Woods, 8 Cal. 315; Deering v. Adams, 34 Me. 41. (h) A person is aggrieved so as to be entitled to an appeal only when the decree operates upon his property or bears upon his interest directly. Shields v. Ashley, 16 Mo. 471; Deering v. Adams, 34 Me. 44; Bank v. Young, 53 Me. 555; Woodbury v. Hammond, 54 Me. 332; Tuxbury’s Appeal, 67 Me. 270; Black v. Kirgan, 15 N. J. L. 45; Downing v. Porter, 9 Mass. 366; Richardson v. Chevalley, 26 La. Ann. 551; Schwackhamer v. Kline, 25 N. J. Eq. 503; Deming’s Appeal, 34 Conn. 201; Norton’s Appeal, 46 Conn. 527; Wiggin v. Swett, 6 Met. 194; Ames v. Wood, 8 Cal. 315. (i) The test of the right of a third person to appeal is not that the judgment will operate as res adjudioata as to such third person. The true test is rather whether the third person asserts an interest in the res or suhject-matter of the judgment. Zumwalt v. Zumwalt, 3 Mo. 269; Shields v. Ashley, 16 Mo. 472; Ins. Co. v. Houchins, 52 La. Ann. 1137; Iloffel v. Stone-street, 6 Md. 303; Cecil v. Cecil, 19 Md. 72; State v. Markey, 21 La. 743. (j) Parties to the cause are persons interested or injured thereby. Zinc Co. v. Hesselmeyer, 50 Mo. 180; Edmond v. Scott, 78 Ya. 720; Woodey v. Clark, 17 S. C. 313; Loury v. Loury, 64 N. C. 110. (k) An appeal will not lie in favor of one against whom no judgment has been rendered. MeGreggor v. Pierson, 51 bYis. 122. (1) Sureties cannot defend. In re Scott’s Account, 36 Yt. 302; Jones v. Doles, 3 La. Ann. 588; Lee v. Clark, 1 Hill 56; Poiler v. Yolkenig, 11 Hun 385; Chamberlain v. Godfrey, 36 Yt. 380; Duffield v. Scott, 3 Tr. 374; Church v. Barker, 18 N. Y. 463; Leavitt v. Dodney, 40 How. 277; Hurd v. Lodge, 20 Pick. 53; Wyley v. Paulk, 6 Conn. 74; McLaughlin v. Bank, 7 How. 229; Train v. Gold, 5 Pick. 380. (2) The guardian filed her final'settlement, admitting under oath that the amount for which judgment was rendered was actually due. She is bound by such admission. Bruce v. Sims, 34 Mo. 246; Knoop v. Kelsey, 102 Mo. 291; Lenox v. Harrison, 88 Mo. 491; Ramsey v. Henderson, 91 Mo. 5601; Byrd & C. v. State to use, 44 Md. 504. (a) The judgment being rendered upon her own. admission, she cannot complain. “ Consensus toilet errorem.” Webb v. Webb, 3 Swanst. 658; Darden v. Leries, 2 Fla. 572; Garner v. Prewett, 32 Ala. 19; Wheeler v. Pope, 5 Tex. 262. (b) A confession of judgment operates as a release of all errors. U. S. v. Babbett, 104 U. S. 767; Wilson v. Collins, 9 Ala. 127; Winter v. Rose, 32 Ala. 447; Lewis v. Breckenridge, 1 Blaekf. (Ind.) 112; Merritt v. Clow, 2 Tex. 582; Garner v. Bnrleson, 26 Tex. 348; McDaniel v. Monday, 35 Tex. 39; McRae v. Turnpike, 3 Ran. 160: (c) The guardian admitted the amount due and the judgment is for such amount and is final. Garner v. Prewett, 32 Ala. 13; McBride v. Hunter, 64 Ga. 660; People v. Owners, 108 111. 442; Stewart v. Betzer, 20 La. Ann. 137; Cock v. Pope, 3 Munf. 167; Barnwell v. Harmon, 6 Mart. (O. S. La.) 388; Skinner V. Dameron, 5 Rob. (La.) 447; Railroad v. Brick Co., 15 Mo. App. 590: (d) No appeal can be taken by either party from such decision, since the error, if any, is his own, and not the court’s. Chapin v. Perrin, 46 Mich. 130; Brick v. Brick, 65 Mich. 230; Finch v. Carpenter, 29 Hun 268; Peterson v. Swan, 119 N. Y. 662; Monell v. Lawrence, 12 Johns. 534; Atkinson v. Maups, 1 Cow. 709; Williams v. Neil, 4 Heisk. 279; Jones v. Williamson, 6 Coldw. 76; Ringold’s Case, 1 Bland 9; Gable v. Williams, 59 Md. 51; Williams v. Williams, 7 Gill. 305; Geary v. Sheridan, 8 Ves. Jr. 192; Webb v. Webb, 3 Swanst. 658; Bradish v. Gee, Amble 229; King v. , Wightman, 1 Anst. 80; Darden v. Leries, 2 Fla. 572; Owen v. Yates, 75 Mich. 256; McCafferty v. Celluloid Co., 43 C. C. A. 540 ; Brown v. Iron Co., 134 U. S. 530. (e) A party in whose favor and upon whose motion an order is made cannot appeal. Garner v. Prewett, 32 Ala. 19; Winter v. Rose, 32 Ala. 447; Wilson v. McAdams, 10 Iowa 590; Thompson v. Perkins, 57 Me. 292; Winchester v. Winchester, 121 Mass. 128; Campbell v. Randolph, 3 Pick. 313; Hudson v. Allison, 54 Ind. 215; Lallande v. Jones, 14 La. Ann. 714; Patten v. Sterritt, 20 Me. 145; Railroad v. Ketchum, 101 U. S. 295; Schmidt v. Mining Co., 28 Ore. 25; In re Radivich, 5 Am. St. 466; Hooper v. Bucher, 109 N. Y. 609; Mintz v. Brock, 193 Pa. St. 294; Bank v. Kilgore, 43 S. W. 565; Clallam Co. v. Clump, 15 Wash. 593; Marsden v. Soper, 11 Ohio St. 504; Woodman v. Valentine, 22 Me. 401; Wheeler v. Pope, 5 Tex. 262; Dunman v. Hartwell, 9 Tex. 495; Laird v. Thomas, 22 Tex. 276. (f) Same rule where judgment was rendered upon facts reported by consent of parties. J ohnson v. Sped, 21 Pick. 225; 2 Ency. PI. and Pr., 99-102. (g) No appeal lies from judgment of dismissal at appellant’s request. Alieva v. Haggerty, 65 N. T. Supp. 690; Smith v. Lowery, 56 S. C. 493. (h) But the trial court performs no judicial act when an order, decree or judgment is entered by consent. Chapin v. Perrin, 46 Mich. 130'. (i) The purpose of an appeal is to bring up for review an erroneous action of the trial court. Chapin v. Perrin, 46 Mich. 130; Gridley v. Daggett, 6 How. Pr. 280. (j) The rights of the sureties are derivative, and they can only make the same defenses as the principal. Hughart v. Spratt, 78 Ky. 313; State ex rel. v. Judge, 22 La. Ann. 115; State ex rel. v. Weaver, 92 Mo. 673; Taylor v. Hunt, 34 Mo. 208. (k) The sureties are bound by the admissions of the principal made in due course of business. Blaif v. Ins. Co., 10 Mo. 567; Bank v. Kirbben, 48 Mo. 43; State ex rel. v. Weaver, 92 Mo-. 680'.; St. Louis v. Poster, 24 Mo. 146; Dobbs v. Justice, 17 Ga. 624; U. S. v. Cutter, 2 Curt. C. C. 617; Reynes v. Faeharies, 10 La. 127; Wilson v. Green, 25 Vt. 450. (3) The circuit court had no jurisdiction over the subject-matter of this appeal, for the reason that it is taken by the sureties in their name, character and capacity as such; no right is allowed by statute to sureties on guardians’ bonds to appeal in such manner. The right to appeal must exist by statute before it can be exercised. (a) The right of appeal is purely statutory. State ex rel. v. Woodson, 128 Mo. 514; St. Louis v. Talty, 139 Mo. 380; In re Story, 120' 111. 252; Bank v. Barth, 74 111. App. 383. (b) The statute provding for appeals from probate court is complete in itself and the general code only provides for appeals from judgments of circuit courts. Harrington v. Evans, 49 Mo. App. 376. (c) Section 3535, concerning guardians or curators, provides: “Appeals shall he allowed from any final order or judgment of the probate court under this chapter at any time during the term or within six months thereafter in like manner and with the same effect as appeals are allowed in cases of administration of the estates of deceased persons.” Section 278, concerning the administration of the estates of deceased persons,' provides, among other things, “That the right of appeal herein provided for shall extend to any heir, devisee, legatee, creditor or other persons having an interest in the estate under administration. ’ ’ In re Hardy’s Estate, 35 Minn. 194. (a) The circuit court could only exercise an appellate .jurisdiction. Lademan v. Lewis, 13 Mo. App. 585; In re Garver, 77 Mo. App. 459. (b) The circuit court, only exercising appellate jurisdiction, cannot acquire original jurisdiction. Robinson v. Walker, 45 Mo. 120; Greene v. Costello, 35 Mo. App. 134; Gosing v. Showengerdt, 24 Mo. App. 556. (c) Such appellate jurisdiction of the circuit court must exist or be conferred by law. Collier v. Wilson, 56 Mo. 420; Abernathy v. Moore, 83 Mo. 65. (d) The circuit court must confine itself strictly, to the appellate power given it. Kansas City v. Ford, 99 Mo. 94; Harris v. Hunt, 97 Mo. 571; Railroad v. Campbell, 62 Mo. 535■; Ellis v. Railroad, 51 Mo. 200. (e) The circuit court, when exercising a statutory appellate jurisdiction, its jurisdiction as an appellate court exists only by virtue of the statute, and any omission cannot be supplied by judicial construction. Taffe v. Ryan, 25 Mo. App. 553. (f) The circuit court could not enter judgment against the parties, but must certify its decision to the probate court. R. S. 1899, sec. 286; Branson v. Branson, 102 Mo. 6201. (g) The circuit court could only exercise an appellate jurisdiction, and could not render any judgment excepting an accounting. Cauley v. Truitt, 63 Mo. App. 259; Johnson v. J ones, 47 Mo. App. 237; In re Garver, 77 Mo. App. 459. (h) The circuit court could only exercise appellate jurisdiction and only has the same powers as the probate court itself had, and should have confined itself to the limitations placed upon the powers of the probate court. Woerther v. Miller, 13 Mo. App. 571; Pearce v. Calhoun, 59 Mo. 273; Coons v. Ward, 47 Mo. 200 ; In re Garver, 77 Mo. App. 459; Works on Jurisdiction, P'. 433; Lucida v. Madine, 3 Nev. 95; Johnson v. Jones, 47 Mo. App. 241. (i) The power of probate courts is limited to a devolution of assets to the parties entitled by devise or heirship, and it has no power to pass upon the rights or claims of third persons against the heirs, legatees or devisees of an estate in the course of administration, and no power to substitute such person in the place and stead of the representatives by blood or by will of the deceased owner except by consent. The jurisdiction to settle disputed rights and conflicting claims of ownership between such persons and such heirs or distributees is vested in courts of general jurisdiction. Jones v. Jones, 53 Mo. App. 217; Cauley v. Truatt, 63 Mo. App. 538; Bramell v. Cole, 136 Mo. 209; Coleman v. ’ Farrar, 112 Mo. 81; Yeoman v. Younger, 83 Mo. 424; Ford v. Talmage, 36 Mo. App. 71; French v. Stratton, 79 Mo. 562. (j) No jurisdiction is given to the probate court or to the circuit court in the exercise1 of an appellate probate jurisdiction, to take into consideration the question of liabilities of sureties on their bond and apportion their liabilities thereunder. Such questions belong to a court of general jurisdiction in an action on the bond. Brammel v. Cole, 136 Mo. 210 ; In re Garver, 77 Mo. App. 463; Woerner on Administration, sec. 151. (4) A guardian should keep his ward’s property separate from his own; otherwise, he will make it his own so far as to be accountable for its loss. Woerner on Guardianship, p. 205; White v. Parker, 8 Barb. 48; State v. Greensdale, 106 Ind. 364; Burrell v. Burrell, 78 Va. 574; Byrne v. Anderson, 67 Ga. 466; Michael v. Locke, 80 Mo. 548; Bush v. Bush, 33 Kan. 556. (a) Where the guardian invests money of ward in guardian’s own business, or any unauthorized business, the profits will go to the ward and the losses fall upon the guardian. Merritt v. Merritt, 62 Mo. 156; Downing v. Eeeley, 72 Ga. 562; Rogers v. Dickey, 117 Ga. 819. (b) The investment of the ward’s money in her own business by the guardian is a conversion for which the guardian is liable on her bond. State v. Buning, 74 Mo. 87; West v. West, 75 Mo. 204; Michael v. Loche, 80 Mo. 548; State v. Sanders, 62 Ind. 562; Stump v. Pfeifer, 58 Ind. 472; Bush v. Bush, 33 Kan. 556; Clay v. Clay, 60 Ky. 548; Lowry v. State, 64 Ind. 421; .Winstead v. Stanfield, 68 N. C. 40. (c) We are authorized by authorities to urge that if she mingled funds or employed it in her own business, she is chargeable for the highest rate thereon, compounded for the whole time. Woerner on Admn., p. 1138; In re Davis, 62 Mo. 450; Williams v. Petticrew, 62 Mo. 460; Estate of Camp, 6 Mo. App. 563, 74 Mo. 192; Cruce v. Cruce, 81 Mo. 676. (5) The guardian has been guilty of such gross negligence as to render her liable, not only for all money and property that actually came into her hands, but for all money and property and debts she could have, collected by the exercise of reasonable diligence. Woerner on Guardians, sec. 55; Taylor v. Hite, 61 Mo. 144; Merritt v. Merritt, 62 Mo. 157; Reynolds’ Appeal, 70* Mo. App: 579; Scudder v. Ames, 142 Mo. 233; In re Heffey, 10' Mo. App. 232. (a) The guardian is chargeable with the value of the property she ought to and might have recovered from herself as administratrix. State v. Branch, 134 Mo. 602; In re Haffey, 10 Mo. App. 232; Reynolds’ Appeal, 70 Mo. App. 579; Stark v. Attison, 43 N. H. 465; Ashley v. Martin, 501 Ala. 537; Woerner. on Guardianship, see. 60. (b) She would also be liable for negligence for not collecting funds from herself as administratrix. Burke v. Turner, 85 N. C. 500;' Bescher v. State, 63 Ind. 302; State v. Greensdale, 106 Ind. 364; Keenan’s Estate, 6 Kulp 67; Will’s Appeal, 22 Pa. St. 325; Horton v. Horton, 4 Ired. Eq. 54; Lynn v. Osgood, 58 Yt. 714; Harker v. Irish, 10 N. J. E'q. 269'. (c) In the absence of any evidence the guardian is presumptively liable for all debts uncollected, for she must show they are uncolleetable. Stewart v. McMurry, 82 Ala. 269; Seigler v. Seigler, 7 S. C. 317; Com v. Miller, 57 B. Mon. 205; Potter v. Hiseock, 30 Conn. 520*. (d) Being liable as guardian for the negligence in not collecting from herself as administratrix, she is chargeable with the highest rate of interest with annual rests. In re Davis, 62 Mo. 450; Bobb' v. Bobb, 89 Mo. 421; Frost v. Winston, 32 Mo. 489; In re Assignment, 129’ Mo. 499. (6) The guardian is not entitled to compensation to the extent of $35 per month for the support and maintenance of the ward during the period of the guardianship-, for on the death of the father it is the duty of the mother to support her infant children. Furnam v. Yansise, 56 N. Y. 435; Dennis v. Clark, 2 Cush. 349; Reynolds v. Swetzer, 15 Gray 78; Edwards v. Davis; 16 Johns. 284; Gilley v. Gilley, 79’ Me. 292; Reeves on Domestic Relations, 351 and 402; Dedham v. Natick, 16 Mass. 135; Nightingale v. Whitinton, 15 Mass. 272; Tyler on Infancy, 293 and 294. (a) The inability of a mother to support the -child during the time for which she asked pay for maintenance must affirmatively appear. Woerner on Guardians, sec. 104; State v. Roche, 91 Ind. 406, 94 Ind. 372. (b) Under ordinary circumstances a guardian is not allowed compensation for past maintenance. Folger v. Heidel, 601 Mo. 284; State to use v. Slevin, 93 Mo. 262; State to use v. Miller, 44 Mo. App. 123; State to use v. Martin, 18 Mo. App. 476. (7) The guardian is not entitled to the usual commission for the administration of the estate on account of her mismanagement of the same. State v. Richardson, 29 Mo. App. 595; Reed v. Ryburn, 23 Arle. 47; Farwell v. Steen, 46 Vt. 678; Burke v. Turner, 85 N. C. 500; Seguin’s Appeal, 103 Pa. St. 159. • (8) By giving the receipt signed by herself as guardian to herself as administratrix for $5,252.01, and she being then and there worth from fifty to sixty thousand dollars, she becomes at once liable as a guardian. Weaver v. Thornton, 63 Ga. 655; Crenshaw v. Crenshaw, 4 Rich. Eq. (S. C.) 14; In re Scott, 36 Vt. 297; Davis v. Davis, 10 Ala. 299; Pfeiffer v. Knapp, 17 Fla. 154; Moore & M. v. Felkel, 7 Fla. 75; Byrd & C. v. State to use, 44 Md. 504. (a) If she as guardian receipted to herself as administratrix, she is concluded thereby. Pfeiffer v. Pfeiffer, 17 Fla. .144; Crawford v. Brewster, 57 Ga. 226; State v. Roeper, 9 Mo. App. 21. (b) When she settled her former trust and had in her possession funds. sufficient to pay the amount due, she became liable as guardian. Matter of Novil, 10 N. Y. App. Div. 355; Myers v. Wade, 6 Rand. 444; Marris v. Harrison, 78 N. C. 202; Ilarker v. Irick, 10 N. J. Eq. 272.</p> <p>(1) Appellant relies, apparently, upon three propositions. The first is that the sureties upon the guardian’s bond have no right to appeal. This contention seems to be fully answered by section 278, Revised Statutes 1899, which gives the right of appeal on all settlements of executors and administrators to any heit, devisee, legatee, creditor or other person having an interest in the estate under administration. By section 3535, Revised Statutes 1899', an appeal is allowed from any final order or judgment of the probate court in guardianship matters in like manner and with the same effect as in appeals in cases of administration. Certainly sureties on the appeal bond of a guardian have an interest in the estate, and come within the wording of the statute. Section 806, Revised Statutes 1899, in the Code of Procedure, gives the right of appeal to any party to a suit aggrieved by any judgment. Nolan v. Johns, 108 Mo. 431; Loehner v. Hill, 19 Mo. App. 141. As soon as the judgment was rendered by the probate court against respondent, her bondsmen became parties to the suit and entitled to appeal. They were persons aggrieved by the judgment, and, therefore, entitled to appeal. Zumwalt v. Zumwalt, 3 Mo. 269; State ex rel. v. Talty, 139 Mo. 379 ; Wauchope v. McCormick, 158 Mo. 660; Weer v. Gand, 88 111. 490; Farrar v. Parker, 85 Mass. 556; Garber v. Commonwealth, 7 Pa. St. 265; Belcher v. Branch, 11 R. I. 226; Hotchkiss v. Platt, 7 Hun 56; Patterson v. Gathings, 48 Miss. 639; Porter v. Burton, 57 Tenn. 584. (2) But appellant also raises the question as to the correctness of the judgment of the circuit court in striking from the judgment of the probate court the item of $5,252.01, which the guardian attempted to pass from her hands as administratrix of her husband’s estate to herself as guardian, merely by receipt, no money or property passing, together with the interest upon that item. We also urge the court to pass upon this point, and submit that the circuit court was correct in striking out this item. State ex rel. v. Elliott, 157 Mo. 609; State ex rel. v. Branch, 151 Mo. 622, 134 Mo. 592. (3) We have attempted to meet and answer all the points relied upon by appellant and urged in his brief. We assume that this court, in its equity jurisdiction, will render such judgment upon the record before it as the court shall find proper and right. We think this is the duty of the court under the law. In an equity case, the appellate court may not only reverse the judgment of the trial court, but enter appropriate decree affording that relief to plaintiff which he should have received in the court below, or dismiss the case for want of equity. Darrier v. Darrier, 58 Mo. 222; Ringo v. Richardson, 53 Mo. 385; Hoff v. Shepard, 53 Mo. 242. In an equity case, an appellate court may enter such a decree as was the necessary legal and logical consequence of the finding of the trial court which found the issues for plaintiff, and committed error in the decree which it entered upon the finding. Under such circumstances, there is no reason for granting a rehearing in the cause. Kinealy v. Macklin, 2 Mo. App. 241. The authorities to the effect that, instead of reversing and remanding a case of this character, the Supreme Court will enter such judgment as the circuit court should have entered, are numerous. Pfau v. Breitenburger, 17 Mo. App. 19; Widdicome v. Childers, 84 Mo. 382; Nelson v. Betts, 30 Mo. App. 10; Carroll v. Campbell, 25 Mo. App. 630. The appellate court hears an equity case de novo, but it is, of course, necessary that exceptions be taken and properly preserved. Lilly v. Menke, 92 Mo. App. 354; Bank v. Colem, 60 Mo. App. 79; State ex rel. v. Gruinotte, 156 Mo. 513; Benne v. Schnecko, 100 Mo. 250; McElroy v. Maxwell, 101 Mo. 294.</p>

— Hon. W. B. Teasdale, Judge. (1) The special taxbills sued on, are void and should not have been received in evidence, because they were not made out by the president of the Board of Public Works nor by a person thereunto specially authorized by the board of Public Works. Art. 9, sec. 15, Kansas City Charter; Warren v. Ferguson, 106 Cal. 535; Stifel v. Cooperage Co., 38 Mo. App. 340; City of Sedalia v. Donohue; 190 Mo. 408.

— No». W. B. Teasclale, Judge. (1) The judgment for plaintiff wag against the evidence and should have been for defendant. Hernán v. Gilliam, 171 Mo. 258; Ayers v. Schmohl, 86 Mo. App. 349; Allen v. LaForce, 95 Mo.

— No». Robert A. Anthony, Judge. „ (1) The heirs do not take a vested interest linder the will. .They-as a class talcq an. executory; devise, with pqwer.irithe trustees,to. appoint-.,yrHicn qf^the hfei'rs shall have the property, and the estate in jthe lieifs,, could,not vest, until, the appointment was haade.^.-l^ Su4g, Ppw., chap. 2,. sec. VI. 2,‘106 ,-, 2,ídem.,’chap. 10^ sec. VI. 2, 158; 4 Kent’s Com., 316; 2,HiTÍ-llnal)Propv,s 557.?, 1 Smlg.

<p>1. ENTRIES NUNC PRO TUNC: County Court. The inherent power of a county court, being a court of record, to supply , entries nunc pro lime which have been omitted through the misprision of its clerk, where sufficient data exists in the clerk’s office, does not depend on statute, but is a necessary incident to the jurisdiction of every court of record.</p> <p>2. -: -: Judge’s Memorandum: County Depositary: Approval of Bond. A bond of the county depositary. was dated May 4, 1903, and there was a memorandum of its filing on May 7th, and on the back of the bond there was a memorandum of its approval, under date of June 1, 1903, certified by the presiding judge, during the session of the court. Held, that this memorandum may be considered a minute of the court’s action, and authorized a mine pro timo order, approving the bond, made in September, 1905; especially, as there was an order made on M.ay 4, 1903, designating the bank as depositary on condition that it file a bond and that the same be approved, which, though being premature, was evidence of the intendment of the court to approve it.</p> <p>3. -: County Depositary: Bond: Approval: Within Five Days. The statute does not say that the depositary’s bond must be approved in five days. It says it must be executed within five days — that is, signed and delivered.</p> <p>4. COUNTY DEPOSITARY: Bond: Rigid Statutory Requirements. A rigid compliance with all the minutiae of the statute is not indispensable to the validity of a depositary bond. Immaterial variance from statutory form will not render it invalid.</p> <p>5. -: -: Lack of Approval: Validity. Where the bond itself designated a certain bank as county depositary, and that bank, on the filing of the bond and its approval by the county court, assumed to act as county depositary and received the county moneys, the sureties, when sued on the bond, cannot escape liability by a showing that no order approving the bond was ever entered of record. Under such circumstances it is immaterial whether or not there was any formal order designating the bank as depositary. Such order not being intended for the benefit of the sureties, but of the public, the case falls within the rule that the sureties on an official bond, by virtue of which the officer has been inducted into office, cannot, when called upon to answer for his official defaults, escape liability upon the ground that their principal was not duly elected, or did not legally qualify.</p> <p>6. STATUTORY CONSTRUCTION: Purposes to be Conserved: Judicial Notice. In expounding legislation, it is permissible for courts to consider the mischiefs to be retarded and the benefits to be advanced thereby. To that end, they may assume a knowledge of the events of current public history; for courts should not proceed on the theory that they do not know what every one else does know.</p> <p>7. -: -: County Depositary. The purpose of the law which requires county treasurers to deposit the county moneys in banks making the highest bids therefor was not that such funds might be kept as a special deposit, but that the depositary should use. them by loaning them, and pay the county for such use. But that was not to be an unlimited use, for ' in order that the county might be protected, a depositary bond was required, guaranteeing, in substance and effect, that the depositary bank should pursue such a safe method of banking as would result in paying the treasurer’s checks on presentation and demand according to the course of banks.</p> <p>8. COUNTY DEPOSITARY: Reading Statute into Bond. To get at the scope of a bond given by a county depositary, when suit is brought on the bond, the statute pertaining to the subject-matter of county depositaries should be read into the bond, and the sureties are to be held to have contracted with a view to those statutes. This does not militate against the rule that the obligation of a surety is not to be enlarged by implication, and that sureties are favorites of the law and are entitled to stand on the terms of the bond strictly construed.</p> <p>9. -: Relation of Depositary and Sureties to County: Losses. The relation between the county depositary and the county is that of debtor and creditor; and the depositary’s bond is not, in a strict sense, an official bond. Nor does the depositary occupy the relation of a public officer having charge of public funds, which he may not use. On the contrary, when the money of the county passes into the hands of the depositary it becomes, in legal effect, the depositary’s money, subject to its use in banking; it becomes indebted to the county, and its sureties become sponsors for the payment of the debt on demand, in the time and manner contemplated by statute. If losses occur, in the eyes of the law they are losses of the funds of the bank, not of the county, and the sureties are to be held as having contracted against those losses or to pay the debt. The law applicable to suits on official bonds which requires that the conversion of the funds be shown to have occurred during the term of the bond, is not pertinent in a suit on the depositary’s bond.</p> <p>10. -: Liability of Bondsmen: Date of Loss. It is no defense to a suit on the county depositary’s bond, that the loss occurred under some depositary bond given by other parties prior to the signing of the bond sued on, if at the time the bond sued on was given the depositary was indebted to the county and was indebted to it when the treasurer’s checks were presented, and payment was not made.</p> <p>11. -: -: -: Payments. Nor is it any defense that the depositary, during the term' of the bond, made payments, with its own money, on its indebtedness to the county, amounting in the aggregate to more than the amount of the new indebtedness which it contracted on the same account during the same time. Where there was a continuous debt from the depositary to the county during the life of the bond sued on and of the prior bond, and the payments come into the trial unapplied, the law applies them according to right and justice, that is, to the debt, if the deficiency of the depositary, occurring during the life of the prior bond, is brought down to within the life of the bond in suit.</p> <p>12. -: -: -: Prior Deficiencies: Bank Credits: No Actual Money. It does not lie in the mouth of the sureties, when sued on the depositary’s bond, to contend that the money sued for was due the county when the bond was made, that the' county funds had already been lost and then existed only as credits on the bank’s books, and that the treasurer did not in fact ever receive the money, but only the bank’s pass-book showing the bank owed the county a certain sum, and that moneys to the amount which the treasurer has since then placed in the hands of the depositary had been paid on presentation of the treasurer’s checks. They cannot complain that the transfers were made in a manner common to the banking business.</p> <p>13. -: -: -: -: What Is the Res. The res, in a suit on the county depositary’s bond, is the assumption by the depositary of liability to the county for debt — the establishing of the relation of a debtor and a creditor; and that liability is a continuous and transmitted liability from end to end of the transaction. When the money is called for and is not paid, the liability becomes fixed, no matter whether the deficiency first occurred before the bond was made, or afterwards.</p> <p>14. -: -; -; Funds Never Turned Over to Depositary. Prior to the time the principal in the bond sued on became county depositary, it had acquired the properties of another bank, which was at the time county depositary, and assumed all its liabilities, and the county funds were never actually turned over to the assignee, but were credited by it to the county on its bank books. Held, that the sureties on the depositary’s bond cannot escape liability on the ground that the county funds were lost by the prior depositary, for their principal agreed to pay that debt.</p> <p>15. -: Treasurer’s Shortage. The depositary’s sureties are not liable for a shortage of the county treasurer which was attempted to be shouldered off of his official bondsmen on to them, by the treasurer giving his note to the depositary bank for the amount of the shortage, and the depositary adding that amount to the county’s credits on its books, the note in fact never having been paid, and the money the note called for having not in fact been deposited as county money by the treasurer with the county depositary.</p> <p>16. APPELLATE PRACTICE: Entering Right Judgment. The Supreme Court, under its statutory power, will enter' the judgment the trial court should have entered in a suit on a county depositary’s bond.</p>

— Hon. Wm. L. Jarrott, Judge. (1) (a) The deeds were purely voluntary. The taking of notes for the entire consideration is an almost conclusive badge of fraud, as “bona fide sales of real estate are never made in such manner.” Evans v. Bales, 168 Mo. 681; State to use v. O’Neil, 151 Mo. 84; Patten v. Casey, 57 Mo. 118; Bohannon v. Combs, 79 Mo. 305; P'otter v. McDonnell, 31 Mo. 62; White v. Mc-Pheeters, 75 Mo. 286.

Quo warranto. Section 7432, Revised Statutes 1879, being unconstitutional and in conflict with, section 8> of article 9' of the Constitution, Nodaway county did not and could not legally adopt township organization on the 2nd day of November, 1880. State ex rel. Burns v. Gibson, 195 Mo. 251. The election in Nodaway county was held on the same day as tbe election in Linn county, and all the proceeding's were had under the same unconstitutional statute.

— Row. W. B. Teasdale, Judge. (1) Plaintiff entered into a binding valid contract with Bracking wbo was acting for and on behalf of the firm of Sexton & Bracking in signing said contract, the firm of Sexton & Bracking being the real parties in interest, and showed his final acceptance of said contract by making the cash payment provided in said contract when satisfied with title, etc., and this was a purchase of the property in compliance with the requirements in that…

<p>1. ORDER TO REVEAL ASSETS: Referee: Notice. An order of the circuit court to a judgment debtor to appear before a referee and undergo an examination, under oath, touching his means and ability to satisfy the judgment, is not invalid because no prior notice was given to the judgment debtor that an application for such order would be made. The statute (secs. 3227 to 3232, E. S. 1899) does not require notice. The purpose of the order is to compel the debtor to uncover property subject to execution under the judgment already rendered.</p> <p>2. -: -: -: Statutes Constitutional. The fact that the' order of the court appointing a referee to examine the judgment debtor touching his property subject to execution, was ex parte and without notice, and the fact that said statutes make no provision for notice and contemplate an ex parte proceeding at the making of the order, do not render such statutes unconstitutional. The judgment debtor is not thereby deprived of his property or liberty without due process of law, or denied the equal protection of the laws, contrary to either the State or Federal constitution. He cannot be deprived of his, property by such order or proceeding. None of his property can he taken as a result thereof which was not already subject to execution.</p> <p>3. -: Sufficiency of Application. The application for an order on a judgment debtor to appear and submit to an examination touching his property subject to execution, need not state the grounds thereof with the particularity required in a bill in equity or a petition in an action at law. General statements that the judgment debtor has such property, that he has conveyed it for the purpose of defeating his creditors or to conceal it from execution, and pertinent reasons therefor, are sufficient.</p> <p>4. -: Affidavit. The affidavit of an administrator, made by him as such, stating that the things set forth in the application for the order are true according to his best knowledge and belief, is sufficient. 'It would not be sufficient if it stated upon his “information and belief.” The. statute uses the words “knowledge and belief.”</p> <p>6. -: Appeal. No appeal lies from the order of a circuit court directing a judgment debtor to appear and submit to an examination before a referee, touching his property subject to execution. The statute requires the proceeding to be summary, the proceeding does not affect his property rights, and the statute in reference to the proceeding is complete within itself and does not provide for an appeal.</p>

— Hon. W. B. Teasdale, Judge. (1) The person with whom a contract is entered into for the benefit of another may sue in his own name, in enforcement of such contract, without joining with him such other person; he is a trustee of an express trust within the meaning of the statute. Wright v. Tinsley, 30 Mo. 389; R. S. 1899, sec. 541.

— Hon. William A. Davidson, Judge. Plaintiff brings tbis suit as purchaser of real property sold under general execution against a judgment debtor.

— lion. David H. Ely, Judge. Defendant was understood to maintain on the trial that the suit ought to have been brought against the occupying tenant of defendant and not against defendant. The form of the action is that of ejectment. Ejectment is recognized by our statute, as well as by the common law, as a proper form of action by a tenant in common against a disseizing cotenant.

— Mon. Andrew F. Evans, Judge. (1) Refusal of change of venue a reversible error, (a) The court erred in not changing the venue in pursuance of the application filed November 5; 1902, by sending the cause to some county other than Jackson county. ' The transfer of the cause to Division 5 of the same court was not a change of venue. State v. Lehman, 182 Mot 458; State ex rel. v. Flournoy, 160 Mo. 324; Railroad v. Perkins, 125 111. 127; Meyer v. Walker, 31 111. 353.

— Row. David II. Eby, Judge. Instruction 1, asked by plaintiff, should not have been given. The deed of Mrs. Greening conveyed and vested in defendant that part of tbe land in controversy which the record shows she owned in her own right, as well as her dower in the part that belonged to her insane husband. This proposition plaintiff denies, and said instruction sustains him in such contention.

— Eon. Argus Cox, Judge. (1) Under the finding of facts and the ruling of this court in the case of Wheelock v. Overshiner, 110 Mo. 100, the judgment should'have been for the plaintiffs. (2) When the finding .of facts is incorporated in the judgment, then they become a part of the judgment, and if the conclusion of law is not warranted by the facts thus found, this court will reverse and enter up the proper judgment, or reverse the case.

— Noto. A. F. Evans, Judge. (1) Plaintiff is competent to institute this suit and to take and administer the gift to the Methodist Episcopal Church, South. The Methodist Episcopal Church, South, is an organized society not incorporated. It is old enough to have a history; cohesive and stable enough to frame and enforce regulations, rules and laws for the control and government of its property and membership.

<p>1. ATTORNEY FEES: Receivership: Auxiliary Companies. Three Insolvent railway companies, owning together a line of. road from Kansas City to Port Arthur and certain terminal lines, all operated by one company which held the stock of the other two aDd had issued its bonds covered by mortgages on all the lines, were brought into court by separate suits, the principal suit being to foreclose the mortgage. Thereupon, in order to perfect a reorganization of the properties, the attorneys of.the principal company managed ancillary suits brought against the other two, obtained the transfer of all the suits from the State courts to the United States Circuit Court, had receivers appointed for all the roads and the receivership extended over the entire line, and succeeded in perfecting the reorganization of a company which took over all the properties, and thereby one entire railway system was preserved, and the value of the properties greatly enhanced. Held, in a suit by the attorneys against one of the auxiliary companies for compensation for their services, that there was evidence that they had rendered services for it under the same kind of a contract they had with the principal company, and payment of that company did not acquit the auxiliary company of its obligation to pay for such services.</p> <p>2. -: Time Employed. The time engaged by attorneys in rendering a beneficial service to a client is of minor importance in determining the value of the service. The amount involved, the responsibilities assumed and the benefits obtained are of more importance.</p>

Francois Circuit Court.— Hon. B. A. Anthony, Judge. (1) Forfeitures aré not favored by law, and all conditions and provisions in contracts providing for forfeitures must be strictly construed, and that construction adopted, if at all permissible, which will avoid the forfeiture. McCollum v. Ins. Co., 61 Mo. App. 352; Wheless v. St. Louis, 90 Mo. App. 106; Knight v. Orchard, 92 Mo.

<p>WRIT OF ERROR: Wrong Title: Dismissal. An application for a writ of error to issue “in a certain cause lately pending in the St. Louis Court of Criminal Correction wherein the city of St. Louis was plaintiff and the Empire Theatre Company was defendant,” and a writ issued in strict conformance with the terms of the application, are not sufficient to transfer to the appellate court a case entitled, “City of St. Louis vs. Edwards Butler and Empire Circuit Company, a corporation.” A writ of error, unlike an appeal, -which is a continuation of the old action, is considered a new action, and the two titles above set out indicating two different causes of action, the writ must be dismissed.</p>

Transferred from St. Louis Court of Appeals. (1) An ordinance in conflict -with, a general ordinance of prior date, the conflicting parts whereof are not in express terms repealed, is in conflict with section 28 of article 3 of the city charter, and void. The improvement ordinance involved in this case is such an ordinance. It is therefore void and the majority opinion of the Court of Appeals so holding is clearly right. St. Louis v. Sanguinet, 49 Mo. 581.

— Eon. Wm. A. Davidson, Judge. (1) The trial court committed error in admitting in evidence the statements of witness Thias to the effect that the warranty deed dated August 29,1898, from Kopp to Thias, was an agreement to secure a debt owing by Kopp to Thias.

<p>1. ELEVATORS: Carriers. A person or corporation operating an eleyator to transport persons or property from one floor to another of a building, is as much a carrier as is a person or corporation operating a railroad or stage coach. . The law governing railroads and other carriers applies with equal force to the operator of an elevator.</p> <p>2. -: On Freight Car: Passenger or Licensee?- The evidence shows that there were six passenger elevators in the building and one freight elevator, and that passengers generally used the passenger elevators, and all the workmen, like plaintiff, engaged in the transportation of freight for a tenant of the building, rode on the freight elevator. Held, that plaintiff was a passenger, and not a licensee, and defendants owed him the care due a passenger on a common carrier under like circumstances; that is, the same degree of care due a passenger on a railroad freight train, the passenger in such case assuming the usual and ordinary inconveniences and the additional hazards incident to the mode of conveyance. He can, therefore, complain of the negligent operation of the elevator, or of the defective machinery and appliances used in operating it.</p> <p>3. INJURY TO PASSENGER: Negligence: Cause of Injury. The relation of passenger and carrier having been established, it is not incumbent upon plaintiff to show the cause of the accident, where general negligence is pleaded. It is sufficient to show the accident and the attendant circumstances and conditions; that done, negligence on defendants part will be presumed, and the burden then shifts to defendant to show that there was no negligence in the construction or operation of the elevator.</p> <p>4. -: -: -: Special Causes Pleaded. Where the passenger alleges general negligence, the burden is on defendant to show the cause of the accident. This burden is placed on defendant because the carrier is in a position to know of defects in the machinery and the other facts which caused the injury, while the passenger is not. But if the passenger in his petition alleges specific acts of negligence as the cause of the accident, he is presumed to know of them as well as defendant, and having charged them he must prove them or fail to recover.</p> <p>5. -: Instruction: Care. Where the relation of passenger and carrier exists, the law requires the highest degree of care, and it is error to refuse an instruction for plaintiff requiring that care. Whether the passenger is upon a passenger train or elevator, or upon a freight train or elevator, he is entitled to that high degree of care; and that is true, although plaintiff may by the specific allegations of his petition have assumed the burden of proving the specific causes of the accident.</p> <p>6. ———: Harmless Error. Where examination of the evidence reveals a case in which the verdict might have been for plaintiff had the court given an instruction which indicated the proper care due him, the judgment will not be affirmed on the insistence that the verdict is for the right party and should be affirmed notwithstanding the error.</p> <p>7. ELEVATORS: Negligence: Liability of Trustee and Agent. A trust company was made trustee under a deed of trust given to secure the bonds issued by the company that owned the building, and by written instrument attorney in fact irrevocable to rent the building, collect the rents, and pay taxes, ground rent, interest on bonds, insurance and all expenses connected with the maintenance, repairs and management of the building; it was not only given control over the purse-strings, but full management and control of the building, and employed the caretakers, including the elevator operators, and paid them. Held, that it is liable for personal injuries to a third person (a passenger on the freight elevator) caused by the negligent operation of the elevator, or by defective elevator machinery.</p> <p>8. -: -: -: Misfeasance. Where an agent undertakes to do for a principal a particular work, and has actually entered upon the performance of that work, and in doing it fails to respect the rights of third parties, by doing some wrong, . whether of omission or commission, as where he fails or neglects to use reasonable care and diligence in the performance of that work, he is guilty of misfeasance, and will be personally responsible to such third person who is injured by reason of such misfeasance.</p>

Louis City Circuit Court. — How. Moses N. Sale, Judge. (1) The obligation to erect fire-escapes is upon all of the parties named in the statute, but primarily upon the owner. The Legislature meant the owner of the building and not the owner of the business, as the building and not the business is spoken of in the stat: ute.

— Hon. David II. Eby, Judge. (1) George P. Rice executed title bond for tbe land to defendant Henry O. Harp for consideration of $400 to be paid in one, two, three and four years, at seven or eight per cent. Tbis was done with tbe consent of A. J. Rice. George P. Rice then conveyed to A. J. Rice. Henry C. Harp paid tbe interest for two or three years to A. J. Rice, who then conveyed to defendant Margaret L. Harp, upon tbe payment of tbe principal $400 by Couch, tbe deceased.

<p>1. RES ADJUDICATA: Negligence: Unsuccessful Suit By Wife: Suit By Husband. If a wife sue to recover for injuries done by negligence to her body and for the pain and anguish of mind flowing therefrom, and lose, the judgment in her suit does not, as a matter of law, bar the husband’s recovery in his suit against the same defendant for the damages personal to himself arising out of the same accident — even though the issues in regard to defendant’s liability and negligence are common to both suits, and even though the issue of the wife’s contributory negligence is a factor common to both.</p> <p>2. -: Distinctions: Suits in Tort. The line of demarkation between what is res adjudicata and what is not, does not always run true in case-made law. Suits for damages sounding in tort are not proceedings in rem, or proceedings quasi In rem, wherein the status of the thing may be fixed once for all and made binding on all the world; and in solving the issue of res adjtidicata in a negligence suit, the same spacious application of the doctrine made in those, proceedings should not be made, but a narrower application.</p> <p>-: Tort: Identities. A suit by the husband for damages for negligent personal injuries to his wife, is strictly in personam; and the general rule of res adjudieata is, that, given the same subject-matter, all parties and privies are bound by the judgment entered against one of them. This means that the essential conditions under which the plea of res adjudicada becomes applicable are the identity of the thing demanded, the identity of the cause of demand, and the identity of the parties in the character in which they áre litigants.</p> <p>4. -: Estoppel: Reasons For: Merger. Res juddeata is estoppel by record, and the conclusiveness of the rule is an inflexible principle of law having its foundation in the maxim that it is to the interest of the State that there be an end to litigation. But the plea, to be availing, must show either an actual merger or that the same point has already been decided between the same parties or their privies — that the plaintiff or his privies had an opportunity of recovering, and but for his own fault might have recovered in the original suit that which he seeks to recover in the second suit.</p> <p>5. -: Torts: Who are Privies? The term privity means mutual or successive relationship to the same rights of property. To make a man a privy to an action he must have acquired an interest in the subject-matter of the action, either by inheritance, succession or purchase, from a party subsequently to the action, or he must hold property subordinately. Privies may be privies of blood (such as an heir to his ancestor), privies in representation (as executor or administrator to his deceased testator or intestate), privies in estate (as grantor and grantee, lessor and lessee), or privies in law (as tenant by the curtesy or in dower). But it should be noticed that the ground of privity is property, not personal relation.</p> <p>6. -: -: Who Are Parties? Under the term parties, in considering the scope of the rule of res adjudieata, the law includes all who were directly interested in the subject-matter of the litigation, and had a right to make defense, or to control the proceedings, and to appeal from the judgment, which right included the further right to adduce testimony and cross-examine witnesses. Persons not having these rights are regarded as strangers to the case.</p> <p>7. -: -: Privies: Husband and Wife, A husband who sues for damages to himself, due to the negligent personal injury of his wife, for instance, for the money he paid out and will have to pay out for medical attendance upon her and for loss of her companionship, in that her eyesight was destroyed and she had remained a helpless invalid, does not stand in priv-' ity to the wife, and his suit is not barred because of the fact that her suit for the same injuries resulted in a judgment against her. He sues in his own. right, and does not hold title to the damages to him in subordination to her title. There is no identity or privity of parties, and he did not succeed to her position as regards the subject of the estoppel. Besides, he had no opportunity of recovering his damages in her suit; he had no control over the proceedings in her suit, he could not have appealed from the judgment therein, nor could he have cross-examined defendant’s witnesses. And the rule is the same whether the wife sued alone for her damages, or was joined therein by her husband as a nominal plaintiff. [Disapproving Brown v. Railroad, 96 Mo. App. 164, and Morris v. Kansas City, 117 Mo. App. 298.]</p> <p>8. -: -: Husband and Wife: Separate Actions: Judgments. Two independent rights of action — the one to the wife, for injuries to the body -of the wife, for the incident pain and anguish, together with expenses paid from her own estate, and loss of earning capacity; the other to the husband, for consequential injuries suffered by him in the loss of her society, services, expenses, etc., known in the old law as an action per quod consortium amisit — arise for the negligent injury to the wife. The suits result from the same injury to the wife, but the causes of action are separate, and each is an entirety unto itself. At common law the ownership of the judgment in the wife’s favor belonged to the husband, when he joined as plaintiff; but under our statute that is no longer true, the judgment-now belonging to her.</p> <p>'9. -: Matters Necessarily Determined: Privies and Parties. The rule that the conclusiveness of judgments is not confined to the entire matter litigated, but includes the finding of any facts which were in issue and necessarily decided, can be applied only when the one to be bound was either a party or in privity with a party.</p> <p>10. -: Torts: Husband’s Suit: Evidence. In the husband’s suit for damages for negligent injuries to the wife, the judgment roll in the wife’s suit should not be admitted in evidence.</p>

H. G. Tww monds, Judges (1) The court erred in refusing to permit plaintiff to prove special benefits to defendant’s farm, arising from the construction of the railroad, and the location of a station on the adjoining forty. Any benefits the location of a station on defendant’s land, or the adjoining forty, would add to the property by way of increased facilities for marketing his farm products and shipping stock, should have been deducted from the damage.

Louis City Circuit Court. — Hon. James B. Kinealy, Judge. The evidence tends to prove that a car, standing at either the Cast or west intersection of the Y track With Clayton track, would not he visible at any or a few places along the branch track, as it wound down the hollow in the shape of an S, or indeed at the West End Heights; so that it would be straining credibility to declare as a certainty that McCahan must have seen the car ahead of him. His lips are sealed.

Louis City Circuit Court. — Eon. John A. Blevins, Judge. (1) The obligation to erect fire-escapes is upon all of the parties named in the statute, but primarily upon the owner. The Legislature meant the owner of the building and not the owner of the business, as the building and not the business is spoken of in the statute.

Louis City Circuit Court . — Hon. Jesse A. McDonald, Judge. The trial court erred in setting aside the nonsuit for the reason that plaintiff did not use due diligence in preparing the case for trial. Howell v. Howell, 37 Mo. 124. The appellate court will not interfere with the discretion of the trial court in setting aside the nonsuit.

Louis Court of Criminal Correction.— Hon. Hiram N. Moore, Judge. This is a prosecution under Ordinance No. 20808, and the particular section involved is section 18 thereof. This is the section which was under consideration in the case of St. Louis v. Liessing, 190* Mo. 464.

— Hon. Henry G. Riley, Judge. (1) Plaintiff’s petition does not state a cause of action: First, for the reason that it states no equity, the allegations of the mistake, accident and oversight being too indefinite. Bliss, Code Pleading (2 Ed.), sees. 211, 212.

— Hon. Wm. N. Evans, Judge. (1) Concubinage is the cohabiting of a man and woman who are not legally married, and the gravamen of the offense of taking away a female from a person having legal charge of her for the purpose of concubinage, is the intent with which she is taken, and this intent may be, of course, gathered from all the facts and circumstances in evidence. Under the statute and the adjudications of this court this is a crime consisting of intent wholly.

<p>1. HOMICIDE: Seeking Difficulty: Prejudicial Instruction. Where there is no evidence tending to show that the defendant sought out deceased or began the quarrel or difficulty, an instruction which tells the jury that if defendant, a night watchman, “sought or provoked the difficulty for the purpose of taking advantage of deceased and taking his life, or doing him some great bodily harm, then there is no self-defense in the case, however imminent the peril of the defendant may have become in consequence of any attack made by the deceased upon him,” is prejudicial error. In this case the wife of deceased testified that defendant walked into the hotel and said to deceased, “Bill, I have got you,” but that to this deceased made no reply, and it is clear from her testimony that if defendant used those words they did not provoke the difficulty, and the three 'disinterested witnesses did not hear them; moreover, it is plain from the evidence that deceased without any lawful or just provocation began the difficulty on account of a previous grudge or ill-feeling, and was the aggressor. Held, that the instruction was not,authorized by the evidence, and was a practical denial of the right of self-defense.</p> <p>2. -: Self-Defense: Instruction Not Authorized by Evidence. Where all the evidence tends to show that when defendant shot deceased, the deceased had not only just struck him and broken one of his arms with a club, but was in the very act of striking him another blow with the same club, instructions which deny to defendant the right of self-defense “if he shot the deceased at a time when the deceased was not attempting to do him any harm, but was retreating,” are not authorized by the evidence, and are erroneous and prejudicial.</p> <p>3. -: Manslaughter: instruction: Intentionally. An instruction on manslaughter in the fourth degree which does not require the jury to find that the defendant intentionally shot and killed deceased, is faulty.</p> <p>4. -: -: -: Malice and Premeditation. Clauses requiring the absence of malice and premeditation and relating to the presumption which arises from the intentional use of a deadly weapon, are out of place in an instruction on manslaughter in the fourth degree.</p> <p>5. -: No Evidence: Appellate Practice: Reversal. Notwithstanding it is apparent that had it not been for the erroneous and misleading instructions on the subject of self-defense, no conviction would have resulted, yet if under the circumstances other criminating evidence may be produced on a retrial, the judgment will not be reversed, but the cause will be remanded with directions that if no additional or different evidence is produced the court should direct an acquittal.</p>

<p>APPEAL: Sufficiency of Evidence: Motion for New Trial. Where the evidence clearly establishes defendant’s guilt, and the points raised in the motion for new trial are without merit, the judgment will be affirmed.</p>

— Hon. John T. Moore, Judge.. (1) The indictment is framed under section 1995, Revised Statutes 1899, and the conviction is of forgery in the first degree. The indictment should have been framed under section 2009, forgery in the third diegree. State v. Fenly, 18 Mo. 445. (2) But if the indictment is properly predicated on section 1995, it is insufficient to sustain a conviction.

— -No». L. B. Wood-side, Judge. { (1) The offense must be prosecuted in the county-in -which it was committed. R. S. 1899', sec. 2406; State v. Anderson, 191 Mo. 134. And the venue is a question of fact, and must be proven by the State, the same as every other necessary averment in the information. State v. McGrinnis, 74 Mo. 245 ; State v. Hartnett, 75 Mo. 251; State v. Inman, 76 Mo. 649; State v. King, 111 Mo. 576; State v. Hottle, 104 Mo. App. 34.

Louis City Circuit Court. — Now. Robert M. Foster, Judge. (1) Error was committed by tbe circuit attorney and tbe court in violating tbe provisions of section 2638, by referring to tbe right of tbe defendant to testify in tbe presence of tbe jury and while discussing tbe admissibility of testimony. State v. Weaver, 165' Mo. 13; State v. Guinn, 174 Mo. 686; State v. Snyder, 182 Mo. 462; McKnight v. U. S., 54 U. S. Cir. Ct.

— How. John W. Wofford, Judge. (1) Testimony introduced for the purpose of identifying defendant is permissible to prove every act connecting defendant with the crime charged. State v. Bailey, 190 Mo. 257; State v. Walker, 194 Mo. 262; 1 Wigmore on Evid., sec. 414. (2) Without regard to defendant’s admission to the witness that he wrote the. letters, they were competent evidence. 3 Wigmore on Evid,, sec. 2153; Kloes v. Wurmser & Louis, 34 Mo. App. 453; Sanders Pub.

Habeas Corpus. Rape is a capital case. 97 Mo. 504. It remains a capital case though the defendant on trial is found guilty and his punishment assessed! at imprisonment in the penitentiary only. 100 Mo. 523. It being a capital case, the appeal operates as a stay of judgment and sentence, absolutely, without further order of the court.

— Row. F. C. Johnston, Special Judge. (1) The charge set forth in the information is “second offense” burglary and larceny (sec. 2379', R. S. 1899) and under such charge, if sustained by the evidence, the punishment must be imprisonment for life; hence defendant was entitled to his statutory challenge of twenty men instead of twelve. Sec. 1890, R. S. 1899.

<p>Appeal from Jasper Circuit Court . — Hon. Hugh Babbs, Judge.</p>

— Now Henry G. Riley, Judge. (1) The information is defective because it fails to state that the mortal wound was inflicted feloniously, wilfully, deliberately, premeditatedly, on purpose, and of malice aforethought. State v. Johnson, 90 S. W. 89; State v. Woodard, 90 S. W. 90. (2) The circuit court erred in permitting the prosecuting attorney, over the objection and exception of defendant, to ask defendant’s witness Winsett if he had not committed a detestable crime.

<p>NO BILL OF EXCEPTIONS. Where no bill of exceptions is filed, there is nothing before the appellate court except the record proper, and if that is free from error, the judgment will be affirmed.</p>

— Hon. A. H. Waller, Judge. (1) The court erred in overruling the motion to quash the indictment because of its failure to charge that the mortal wound was feloniously and maliciously inflicted. State v. Hérrell, 97 Mo. 105; State v. Woodward, 191 Mo. 617; State v. Birks, 97 S. W. 578.

Louis City Circuit Court. — How. Matt. G. Reynolds, Judge. (1) If the prosecuting witness had been drunk before and had lost her husband’s money, it was proper for the jury to know what kind of witness she was and whether she was to be believed in this case.' This evidence should have gone to the jury, not only to impeach the husband, Robert Craig, but to also show the character and habits of the prosecuting witness.

<p>Appeal from Christian Circuit Court. — Hon. John T. Moore, Judge.</p>

— Hon. John W. Wo ford, Judge. (1) The court should have sustained defendant’s demurrer to the information, and motion to quash. The information charges that the defendant did falsely, etc., pretend and say certain things alleged therein— “by virtue of the premises, to-wit:” and then specially sets forth the specific pretenses, which it does not allege were designedly, feloniously and falsely made.